Why equal rights? Notes for February 6

Main points

I took on Hart’s claim to have shown that promissory rights logically entail the equal right to be free.

Specifically, I claimed that there could be a society that had promises but not equal rights to be free. All that the existence of promissory obligations shows is that there is some right to be free that can be modified through a promise. It doesn’t show that the right to be free has to be equal.

I also made a few more minor points about how to understand the last section of Hart’s article.

I object!

Where to start? Well, Suzie thought that Hart’s conclusion is correct: there is an equal natural right to be free. But it seemed to me that she gave a different argument for this conclusion than the one Hart did. She said that any explanation of why the serf had any rights to be free would have to refer to the serf’s standing as a person with a special kind of moral dignity. Since those are qualities that all people have, the true explanation of the serf’s right to be free would show that this right is equal.

So while the serf and the lord believe that they have unequal rights to be free, as a matter of fact, they are wrong. Their rights to be free are equal.

Now, I don’t necessarily disagree. I believe in human rights too, after all. But bear in mind what I was trying to do. I was trying to show that Hart’s way of moving from promissory rights to the conclusion that there is an equal right to be free doesn’t work. Suzie added more to the argument than Hart brought to the table. So, as John helpfully pointed out, Suzie and I weren’t really disagreeing.

Taylor didn’t think I had given a genuine example of unequal involuntary duties. If a society’s hierarchy is inherited, the superior party has total ownership of the inferior. If the superior doesn’t have total control, then the inferior must have voluntarily surrendered rights through, for instance, a pledge of loyalty.

Strictly speaking, I just have to give a logically possible system in order to show that Hart’s conclusion doesn’t follow. If there could be a society that has promises but unequal rights to be free, then one can have promises without being committed to the equal right to be free. By contrast, I cannot believe that there are such things as squares without being committed to accepting the existence of four-sided figures. That’s because it’s completely impossible for anything to be a square without also being a four-sided figure.

But I had hoped for something more. I’ll just have to say that in my admittedly shallow reading of early modern history, monarchs had to fight to be considered “absolute” sovereigns and even then they often failed. I take that to mean that the gentry believed it had rights independent of the monarch’s, though, of course, the monarch had more. I don’t know enough about relations between commoners and the gentry to say if something similar was true there.

And, thanks to John, I always have feudal Japan!

Concluding remarks

I disagree with Hart’s concluding section for two reasons.

First, I think that individuals can have rights even if they are derived from their membership in a class. Isn’t that how general rights work?

Second, I think there are examples of inequality that avoid Hart’s point. I think my case of the lord and the serf is like that. Their rights are held in relation to one another. Another member of the class “lord” couldn’t assert the same rights over another lord’s serfs.

Finally, I restated a question that Jay had asked earlier. Is it obvious that all rights have to involve having control over someone else’s freedom?

Really, there are two questions.

Is it true that having control over someone’s freedom is the distinctive element of rights? That is, something that rights can involve that duties do not?

Is it true that having control over someone’s freedom is an element of all rights?